Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 33
08 December 2021
The Personal Injury Commission (Commission) commenced on 1 March 2021 and, with it, the publication of the majority of decisions issued by the Commission.
To help you navigate the recent decisions of the Motor Accidents Division (MAD) of the Personal Injury Commission, we are publishing weekly the relevant headnotes of published decisions with a link to the decisions on Australasian Legal Information Institute (AustLII) website.
All legislative provisions are from the Motor Accident Injuries Act 2017 unless otherwise noted.
Miscellaneous Claims assessment
Radford v QBE Insurance (Australia) Ltd [2021] NSWPIC 477
Member: Susan McTegg
MOTOR ACCIDENTS—miscellaneous claims assessment—wholly or mostly at fault assessment—whether Insurer entitled to cease statutory benefits—whether insured indicated prior to moving into claimant’s lane—need for assessment conference—whether claimant entitled to unregulated costs.
On 12 July 2019, the claimant was driving a scooter in the right lane of two northbound lanes on Avoca Street, Randwick, when the insured truck driver indicated to move into the right lane of traffic, approximately 100 metres ahead of the claimant. The claimant alleged that the insured was completely in that lane and the claimant then indicated and moved into the left lane, about 40 to 50 metres from the truck. As the claimant drew level with the insured truck, he alleged that the insured changed direction abruptly and turned left in front of the claimant, to access a driveway.
The claimant alleged that the insured did not indicate left, or if he did so it would have been “at the last second” and after the claimant had passed the rear corner of the truck. The claimant applied the brakes and collided with the left side of the truck before sliding underneath. The insured truck then drove onto the claimant’s pelvis and thereafter attempted to reverse back over the claimant when the insured was notified of the accident by witnesses. The claimant suffered serious injury as a result of the accident.
The insured alleged he had been driving very slowly, had indicated right and entered the right lane so that he had sufficient space to execute the turn into the driveway, put on his hazard lights, and looked in his passenger side mirror and saw two vehicles behind him and no vehicles in the left lane. He then alleged that he indicated left and executed the left turn into the driveway.
An independent witness observed the accident and stated to police that the insured had moved about two-thirds into the right lane with his left indicator on and that as he began to turn left, the claimant swerved into the left lane and accelerated. He did not recollect the insured indicated right at any time.
The Insurer alleged that the claimant was wholly at fault, or in the alternative mostly at fault as his degree of contributory negligence should be assessed at 100%.
The application proceeded to a face-to-face assessment conference. The claimant was represented by his solicitor and senior counsel. The claimant and an independent witness were questioned. The insured could not be located, despite efforts on the part of the Insurer.
On questioning by the claimant’s senior counsel, the witness conceded in conference the day before with the claimant’s legal representatives that he had a recollection of the insured flashing the right indicator “a few times”, but he abandoned that recollection at the assessment conference and maintained he had not seen a right indicator as he had advised police.
The claimant submitted that there were some doubts about the accuracy of the independent witness’ recollection. Further it was submitted that the claimant’s version of events was largely consistent in his statement and on questioning, as well as being consistent with the insured’s, apart from the insured alleging that he had indicated turning left. The claimant contended that the insured would have observed the claimant if he had checked both his mirrors before turning left.
The Member noted that if she could not decide between the parties’ version of events, the Insurer would not have discharged its onus of proving the claimant was wholly or mostly at fault. She highlighted that if the independent witness’ version was correct, the claimant would have attempted to move into the left lane whilst the truck was still in both lanes, which she considered was unlikely.
The Member accepted the claimant’s version of events and stated that the insured was likely distressed by his role in the accident and therefore made up that he had indicated left. She considered the claimant was entitled to assume that the insured truck had moved into the right lane intending to make a right hand turn further ahead on that road and that the standard of care exercised by the claimant was that of a reasonable person. Accordingly, there was no deduction for contributory negligence.
As to the claimant’s costs, the claimant submitted that there were exceptional circumstances warranting costs above the regulated fee, justified by the holding of a face-to-face assessment conference due to conflicting versions of events between the claimant, insured and independent witness.
The Member agreed with the Insurer that the matter did not call for the claimant briefing senior counsel. However, the Member accepted the claimant’s submission and awarded costs above the regulated fee, totalling $10,862.84, including a reduced hourly rate for senior counsel.
Findings: The claimant was not wholly or mostly at fault of the accident and there was no finding of contributory negligence. The Insurer was therefore not entitled to cease or reduce the claimant’s statutory benefits. The claimant was entitled to unregulated costs.
